Long v. Abbott

United States District Court, D. Maine

July 7, 2017

ARTHUR J. LONG Plaintiff,v.OFC. BRENT ABBOTT, et al., Defendants.

ORDER ON BILL OF COSTS

On May
31, 2017, a federal jury issued a verdict in favor of
Defendants and against Plaintiff. Jury Verdict, ECF
No. 97. As the prevailing parties in this case, Defendants
are entitled to move for an award of costs pursuant to
Federal Rule of Civil Procedure 54(d)(1), which provides in
pertinent part: “[u]nless a federal statute, these
rules, or a court order provides otherwise, costs . . .should
be allowed to the prevailing party.” Defendants seek
costs in the total amount of $1,501.70 for transcript fees
only. Bill of Costs, ECF No. 101. The First Circuit
has interpreted Rule 54(d) as creating a presumption in favor
of taxation of costs for the prevailing party. Papas v.
Hanlon, 849 F.2d 702, 704 (1st Cir. 1988).
The expenses that may be taxed are delineated in 28 U.S.C.
§ 1920, but the costs must be “necessarily
incurred in the case,” pursuant to 28 U.S.C. §
1924.

Plaintiff
has objected to Defendants’ Bill of Costs in its
entirety, specifically arguing (1) that the Court should deny
the bill in its entirety so as not to chill the rights of
aggrieved citizens such as Mr. Long, and (2) that the only
taxable depositions are those used in the case, those of
Abbott and Long. Plaintiff also noted that the Robert Booth
deposition claimed by Defendants was the subject of a motion
in limine to exclude which the Court ultimately
granted. See Amended Motion in Limine to Exclude Booth
Testimony, ECF No. 50, and Order, ECF No. 92.

Having
made an independent review of Defendants’ Bill of
Costs, the Clerk of Court hereby taxes against Plaintiff the
total amount of one thousand four hundred eight dollars and
twenty cents ($1,408.20).

Public
Policy Considerations

Plaintiff
urges the Court to deny the Bill of Costs in its entirety in
order to avoid chilling the rights of aggrieved citizens like
Long. Some courts have noted that “where the issues are
fairly disputed, it is important that the plaintiff not be
‘unduly intimidated’ by the threat of imposition
of costs.” Mulvihill v. Spalding Worldwide Sports,
Inc.239 F.Supp.2d 121, 122 (D. Mass. 2002) citing
Coulter v. Newmont Gold Co., 873 F.Supp. 394 (D.
Nev. 1994). While there is no clear test or set of criteria
outlined in caselaw to apply to this case, courts have
considered some equitable bases such as the economic
disparity of parties and the limited resources of the losing
party among other factors. Mulvihill at 121;
Coulter at 397; and Moore v. Hughes Helicopters
Inc., 708 F.2d 475, 486 (9th Cir. 1983).
Plaintiffs who object to the payment of costs to the
prevailing party must bear the burden of proving
circumstances to overcome the Rule 54(d) presumption in favor
of an award. Cooley v. Lincoln Electric Co., 776
F.Supp.2d 511 (N.D. Ohio 2011) Given the relatively small
amount of costs claimed in this case, the Clerk believes
plaintiffs in cases of this import will not be discouraged or
chilled by the imposition of costs. Therefore, where there is
a lack of any significant proof by Plaintiff as to the
impropriety of the award, the Bill of Costs will be granted
with the exception of those claimed costs hereby excluded as
explained below.

Transcript
Costs

Defendants
claim deposition transcript costs in the amount of $1,501.70
for five witnesses (Booth, Long, Abbott, Malloch and
Sauschuck) as well as the videotaped deposition of one of the
five witnesses, Robert Booth. A review of the docket shows
that the transcripts of Long, Abbott, Malloch and Sauschuck
were necessarily obtained for use in the case in that they
were used in Defendants’ motion for summary judgment
work and the Plaintiff’s response to that Motion.
See ECF Nos. 30-35. Additionally, some of the
transcripts were cited by the Court in its Summary
Judgment Order, ECF No. 42. Deposition copies that are
used by a prevailing party in its preparation of summary
judgment motion or upon which the Court relied in its order
regarding summary judgment are taxable. Willbanks v.
Woodrow, 65 F.3d 179, (Table) 1995 WL 519157
(10th Cir. 1995), citing Gibson v. Greater
Park City Co., 818 F.2d 722, 725 (10th Cir.
1987). Therefore, allowable deposition transcript costs for
Long, Abbott, Malloch and Sauschuck will be taxed.

Remaining
at issue then are the Robert Booth transcript and the related
videotaped deposition. Defendants have claimed both $275 in
costs for the deposition transcript of Robert Booth and
$416.50 for the videotaped deposition of the same. Plaintiff
noted in his objection to the Bill of Costs that, in the
course of litigation, he objected to the taking of
Booth’s deposition and also filed two motions in
limine to exclude the Booth testimony from trial.
Plaintiff’s Objection to Defendant’s Bill of
Costs, ECF No. 103. Defendants sought to introduce the
video testimony of Robert Booth over Plaintiff’s
objection because Defendants believed that Booth’s
testimony – and his 911 call – would provide
relevant background evidence and impeachment testimony. After
reserving ruling on Plaintiff’s motions in
limine prior to trial, the Court ultimately granted
Plaintiff’s motion to exclude the testimony.
Order, ECF No. 87 and Oral Order, ECF No.
92. The Court’s order reserving ruling expressed its
doubts about the admissibility and the probative value of
Booth’s testimony, but the Court did not make that
finding until hearing trial testimony. Order, ECF
No. 87.

Because
28 U.S.C. § 1920(2) provides for the reimbursement of
depositional fees “necessarily obtained for use in the
case,” Plaintiff has the right to resist the cost
assessment by attempting to demonstrate that the Booth
deposition was unnecessary, but there is insufficient proof
of that in this case. The fact that a particular deposition
was not used at trial does bar an award of costs, as the
deposition could have been used for pretrial proceedings and
it was expected to be used at trial. See In re Baby Food
Antitrust Litigation,166 F.3d 112, 138-139
(3rdCir. 1999) and Westwind Africa Line v.
Corpus Christi Marine Services834 F.2d 1232, 1238
(5th Cir. 1988) (no abuse of discretion where
court taxed deposition that Westwind expected to be admitted
at trial). Further, costs of depositions are taxable if, at
the time they are taken, they appeared reasonably necessary
to be taken. Fogelman v. ARAMCO, 920 F.2d 278, 285
(5th Cir. 1991). Where, in this case, the Booth
testimony was planned to be admitted at trial but for the
evidentiary and probative issues that were litigated, and
where the Court considered the testimony’s usefulness
up to and including trial, the costs of the Booth videotaped
deposition and transcript will be taxed against Plaintiff.
While both videotaped and stenographic depositions may not
ordinarily be found to be “necessary for use in the
case,” the record reflects that the Court granted
permission for the videotaped deposition in this
case[1]. Third Motion in Limine, ECF No.
83, p. 1.

The
Clerk of Court hereby taxes costs in favor of Defendants in
the amount of one thousand four hundred eight ...

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